While the future of the moratorium remains contested, it is likely that it will be repealed in the future. It has not fulfilled its role in preventing land concentration as initially expected and it may have even enabled further concentration as companies do not need to officially own land to gain control over it The European Court of Human Rights has also found that the moratorium violates private property rights.
Lifting the moratorium in the near future might lead to a new redistribution of resources or, conversely, to strengthening the existing alignment of forces of Ukraine’s agribusiness. For this reason, one should think carefully about future land regulations, especially for protecting peasants’ rights and preventing further land concentration. The necessary law on agricultural land sales should become a versatile tool for regulating land sales and harmonizing land relations. It must ensure democratic access to land, especially for marginalized groups, like today’s peasants and smallholder farmers.
As a point of departure, international best practices in land tenure such as the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (hereinafter VGGT) should be taken into consideration.
The Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests (VGGT).
The VGGT were adopted during a special session of the UN Committee on World Food Security (CFS) in 2012 following a three year consultative process that included the active participation of social movements and civil society organisations. They are the first international instrument to apply a human rights based approach to the governance of land, fisheries and forests. As such, they can serve as an important tool for shaping land relations in Ukraine. Paragraph 1.1., for example, emphasizes the importance of developing land policy for the realization and protection of the rights of vulnerable and marginalized people, rural development, environmental protection, and sustainable economic and social development. In this vein, other paragraphs emphasize respect and protection of ‘legitimate tenure rights’ (4.4.); responsible agricultural investments, especially for smallholders (12.3); taking effective measures to prevent undesirable impacts on local communities arising from land speculation and land concentration (11.2); and the development of inclusive and participatory monitoring mechanisms (26.2).
Currently, we cannot say how effectively Ukraine’s Ministry of Agrarian Policy uses the VGGT during the drafting of a bill on the land market in order to prevent human rights violations, land speculation, etc. Previous experience of implementing the VGGT in some Ukrainian legislative acts reflects the fact that they are underemphasized.
As Ukraine moves forward to consider its future land policy, the debate should not simply be restricted to the lifting or extension of the moratorium. It would be advisable for the government, in drafting the new policy, to examine the conditions which led to the concentration of control under the current regime. In particular, the land policy should take steps to address the constraints which have kept people from cultivating their own land, the pressures which them to sell long-term leases on their land, and what strategies and policies could be put in place to allow people to develop sustainable livelihoods on their land, from seed funding for young farmers, to infrastructural development to allow small-scale producers better access to markets.
Agricultural land use must prioritise food production above other forms of land use, such as construction of (bio)energy complexes. Finally, given the devastating impact on the environment of the model and scale of production employed by many agroholdings – including the use of chemical fertilizers and pesticides, monocultures GMOs and heavy machinery which have led to soil degradation, loss of fertility, erosion, and a reduction in biodiversity – land regulations must be complemented by environmental laws that protect the environment from irresponsible agricultural production.
The form of cancellation of the moratorium and any future land policy depends on the political will of the future government, formed as a result of the new electoral cycle in 2019. It will also depend on the degree of public involvement in the drafting of a land market bill. We have witnessed the ineffectiveness of the ban on land sales. That is why the approach to regulating land transactions in the future must be more responsible. Land is a vital resource and part of the ecosystem which seriously affects the development of society, especially in rural areas where people are still inextricably linked to the land and its multiple values.